Investigating FBI Director Comey’s Actions Can’t Undo the Past

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Investigating FBI Director Comey’s Actions Can’t Undo the Past

Justice Inspector General Michael Horowitz

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On Thursday, the Department of Justice Office of the Inspector General announced that it would evaluate the FBI's handling of its investigation into Hillary Clinton's email use. Led by DoJ Inspector General Michael Horowitz, the process is essentially an internal audit to assess whether the FBI and DoJ followed guidelines and complied with all policies. The probe could lead to recommendations for management and operational reforms at the FBI. It could even prompt eventual firings or legal action. But while it can assess whatever damage the FBI's actions may or may not have done, it won't be able to undo it.

In addition to evaluating the actions of FBI Director James Comey—including a letter he sent to Congress 11 days before the election that set off incendiary speculation—the investigation will also probe whether FBI Deputy Director Andrew McCabe should have recused himself in the Clinton case, the possibility that classified information was improperly disclosed to the public, and the strange timing of a series of Freedom of Information Act request document releases. Comey said in a statement on Thursday, "I am grateful to the Department of Justice’s IG for taking on this review. He is professional and independent and the FBI will cooperate fully with him and his office."

The Department of Justice OIG has taken on high-profile investigations like this before, but it's rare for a case to receive this bright a spotlight. Comey in particular has drawn the ire of prominent politicians, especially after a closed-door session that reportedly infuriated several Democrats.

But while it may not provide closure for the Clinton camp, the OIG's investigation will hopefully clarify the reasons for Comey's actions, and give invaluable insight into just one of the many opaque, unexpected political events of the last few months.

Who's Down With OIG

Many federal and state agencies have an OIG, which acts as an independent auditor to root out both routine inefficiencies and more egregious transgressions. OIGs generally have a running list of topics to look into and then take on other investigations as needed. The Comey case and those in its orbit is far from the Justice Department OIG's first high-profile probe; in 2012 it released a 471-page report on the Bureau of Alcohol, Tobacco, Firearms and Explosives' Operation Fast and Furious, a gun-smuggling investigation that the OIG concluded used dangerous and non-compliant tactics. The report laid out extensive requirements for reform, and the OIG followed up in 2016 with an assessment of which of its recommendations had been implemented and which still needed to be. (At the time of the report, ATF was four for six.)

"The DOJ IG has conducted investigations across the board," says Shirin Sinnar, an associate professor at Stanford Law School who studies the role of Inspectors General in the context of national security conduct. "They’ve not shied away from investigating allegations of higher-level misconduct, but they also assess all kinds of other issues across the political divide."

Adding to the tense political context and the publicity surrounding the Comey investigation, the Justice Department OIG has clashed with the FBI many times in recent years over access to information. After the OIG released critical reports about some FBI tactics for collecting suspect data (like phone records, for example), the FBI began resisting disclosure of certain types of information to the IG. In 2015, the Office of Legal Counsel issued an opinion supporting the FBI's approach, but in 2016 Congress passed new legislation invalidating the Bureau's opposition and restoring the IG's broad power to demand information and compliance for its investigations.

Still, Comey has promised cooperation. And precedent seems to be on the OIG's side. "IGs have very broad sweep of authority to gather information," Sinnar says. "I think that’s a sign of the bipartisan support for IGs."

The real question isn't whether the process will be contentious, though. It's what sort of impact it might have.

OIG's Most-Watched Investigation

It might seem like the OIG would only take on such a fraught investigation if it already had strong evidence of wrongdoing. But that's not necessarily the case. The Office said in a statement on Thursday that it is launching the probe "in response to requests from numerous Chairmen and Ranking Members of Congressional oversight committees, various organizations, and members of the public," rather than its own initial findings.

The OIG also made clear that its findings will not alter or override the results of the FBI's investigation into Clinton's email management. Instead, the probe aims to shed light on how the Bureau performed in the case given the controversy surrounding every phase. If the OIG's findings are that the FBI acted improperly, it will offer recommendations for how to correct the problems in the future. For extreme findings, like gross professional negligence or criminal concerns, the OIG recommendations would return to the larger DoJ for evaluation and action. The President can also fire FBI directors without cause, and President-elect Trump could use a negative OIG report to justify doing so to Comey.

Then again, it seems more likely that the Trump administration—which clearly does not share the OIG's concerns over Comey's actions—would attempt to scuttle the investigation, if anything. The President can legally fire an Inspector General, and the Attorney General, likely to be Trump appointee Jeff Sessions, has power to stop the individual investigation. Sessions would also likely have the final say, in the unlikely event that OIG recommends criminal charges, as to whether to pursue them.

Still, experts are optimistic that the case will move forward, with Horowitz at the helm. There are "extremely strong norms against the removal of IGs," Sinnar says. And whatever partisan tensions surround this particular case, "IGs are really not politicized," says Kathryn Newcomer, director of GW University's School of Public Policy and Public Administration. "Their ability to make good change in their organization is totally dependent upon their reputation for integrity and objectivity." Newcomer adds that Horowitz has a reputation as "one of the best IGs in government."

In the end, the case likely won't disappear, as Trump fans may prefer, or offer the sort of comeuppance Clinton supporters may crave. But even if it can't undo the past, it can hopefully help the FBI learn from it.